MCKENZIE BELLEVUE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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McKenzie Bellevue appeals the denial of his Rule 3.850 postconviction motion seeking to withdraw guilty pleas on grounds that the trial court failed to advise him of immigration consequences. The appellate court affirmed the denial without prejudice, allowing him to refile if he can establish a legally sufficient threat of deportation based on the state convictions.
The court affirmed the denial of postconviction relief, holding that Bellevue failed to establish a legally sufficient threat of deportation based on the state court convictions. However, the affirmance was without prejudice, allowing him to refile his 3.850 motion if he can establish such a threat and the INS investigation is properly connected to the earlier state convictions.
[1] A defendant seeking to withdraw a plea based on a trial court's failure to advise of immigration consequences must allege a legally sufficient threat of deportation resul…
[2] A detainer filed by the Immigration and Naturalization Service that does not clearly indicate its basis is on prior state court convictions does not, on its face, establi…
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Join FLexlaw to unlock all legal intelligence“he is entitled to withdraw these pleas because the trial court did not advise him of possible immigration consequences as required by Florida Rule of Criminal Procedure 3.172(c)(8)”
Establishes Bellevue's argument for postconviction relief based on the trial court's failure to provide immigration advice
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBellevue entered guilty pleas in state court in 1989 and 1990 in two separate cases. He is currently in federal custody. Following the Peart decision …
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COPE, J.
McKenzie Bellevue appeals an order denying postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, without prejudice to defendant-appellant Bellevue to refile.
Defendant is in federal custody. Following the decision in Peart v. State, 756 So. 2d 42 (Fla.2000), he filed a motion for postconviction relief seeking to withdraw pleas he entered in state court in circuit court case numbers 88-42984 and 90-44397. He entered pleas in those cases in 1989 and 1990. He contends that he is entitled to withdraw these pleas because the trial court did not advise him of possible immigration consequences as required by Florida Rule of Criminal Procedure 3.172(c)(8).
The trial court denied relief because the defendant’s motion did not allege that he is under any threat of deportation at this time as a result of the state-court pleas. See Peart, 756 So. 2d at 46.
Defendant has appealed. He has attached to his brief a copy of a detainer recently filed by the Immigration and Naturalization Service (“INS”) against him with the Federal Bureau of Prisons. The detainer indicates that an “[investigation has been initialized to determine whether this person is subject to removal from the United States.”
The State correctly points out that this document was not filed with the trial court. Further, there is nothing on the face of the document which indicates that the INS investigation is based on the existence of the earlier state court convictions, as opposed to the current federal sentence that the defendant is now serving. See Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001). Thus, we affirm the order denying postconviction relief, without prejudice to the defendant to refile a 3.850 motion if he can establish a legally sufficient threat of deportation which is based on the earlier state court convictions.
The State argues that the defendant will not in any event be able to show prejudice on account of the state court pleas because under the recent decision of the United States Supreme Court in Immigration and Naturalization Service v. St. Cyr, — U.S. -, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the defendant is entitled to apply to the INS for relief with respect to any pleas he entered prior to 1996. The State may address that claim to the trial court in the event that the defendant refiles a 3.850 motion.
Affirmed.
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Cited By
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Langebeck v. State, 828 So. 2d 436 (Fla. 3d DCA 2002)…PER CURIAM. Affirmed. See Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002); Bellevue v. State, 794 So. 2d 730 (Fla. 3d DCA 2001); Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001), case dismissed, 804 So. 2d 330 (Fla. 2001).…
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Rayon Payne v. State, 869 So. 2d 633 (Fla. 5th DCA 2004)…he showing of prejudice arising from the failure to advise of deportation consequences at a subsequent plea. See also Pena v. State, 837 So. 2d 495 (Fla. 1st DCA 2003); State v. Oakley, 715 So. 2d 956 (Fla. 4th DCA 1998). See also Bellevue v. State, 794 So. 2d 730 (Fla. 3d DCA 2001). Payne asserts that he was interviewed in the fall of 2002 by a federal immigration agent who informed him that he would be deported based on the sexual-battery case, and that he was later served with papers from the Immigration…
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Franklyn Glinton v. State, 850 So. 2d 609 (Fla. 2d DCA 2003)…on. His claim is facially insufficient because he has not affirmatively alleged nor demonstrated that he is threatened with deportation as a result of the robbery conviction. See Mendez v. State, 805 So. 2d 905 (Fla. 2d DCA 2001); Bellevue v. State, 794 So. 2d 730 (Fla. 3d DCA 2001). Therefore, we affirm without prejudice to whatever right Glin-ton may have to file a facially sufficient rule 3.850 motion if he can establish that his robbery conviction has resulted in a threat of deportation. Any such motion f…
Authorities Cited
- Immigr. & Naturalization Serv. v. ST. Cyr, 533 U.S. 289 (U.S. 2001)
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001)